IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF VIRGINIA

CHARLOTTESVILLE DIVISION

BRENNAN M. GILMORE, CASE NO.: 3:18-cv-00017-NCM-JCH

Plaintiff

v.

ALEXANDER JONES, et al., BRIEF IN REPLY IN OPPOSITION

TO BRIEF OF FIRST AMENDMENT
Defendants AND MEDIA LAW SCHOLARS
(DKT. 75-1) BY MR. HOFT, MR.
STRANAHAN, MR. CREIGHTON,
MR. WILBURN, MS. HICKFORD
AND WORDS-N-IDEAS, LLC

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 TABLE OF CONTENTS

Table of Authorities iii

Introduction 1

Facts 1

I. This Court Should Reject Any Attempt by Amicus to Turn This Court into a “Ministry of
Truth” 2

II. Opinion Is a Complete Defense to a Claim of Defamation 5

III. The Plaintiff Is a Limited-Purpose Public Figure 5

Conclusion 7

ii

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 TABLE OF AUTHORITIES

CASES

Biospherics, Inc. v. Forbes, Inc., 151 F.3d 180 (4th Cir. 1998) 5

Buckley v. Valeo, 424 U.S. 1 (1976) 7

Cardillo v. Doubleday & Co., Inc., 518 F.2d 638 (2nd Cir. 1975) 4

Citizens United v. Fed. Election Comm’n, 558 U.S. 310 (2010) 7

Draego v. City of Charlottesville, No. 3:16-CV-00057 (W.D. Va. Nov. 18, 2016) 4

Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974) 5

Jackson v. Longscope, 394 Mass. 577 (1985) 4

Kimberlin v. National Bloggers Club, et al., NO. 403868V (Md. Mont. Co. Cir. Ct. 2016) 4

New York Times Co. v. Sullivan, 376 U.S. 254 (1964) 3

RAV v. St. Paul, 505 U.S. 377 (1992) 7

Ray v. Time, Inc., 452 F. Supp. 618 (W.D. Tenn. 1976) 4

U.S. v. Alvarez, 567 U. S. 709 (2012) 2-3 and 7

FEDERAL AND STATE STATUTES

18 U.S.C. § 1512 6

VA. CODE § 18.2-460 6

WEBSITES

John F. Kennedy, Remarks on the 20th Anniversary of the Voice of America, THE AMERICAN
PRESIDENCY PROJECT, Feb. 26, 1962, http://www.presidency.ucsb.edu/ws/?pid=9075 (last visited
April 12, 2018) 3

iii

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 INTRODUCTION

As a preliminary matter, this brief responds solely to the arguments presented in the “Brief

of First Amendment and Media Law Scholars” (Dkt. 75-1) (the “Defamation Amicus”). That

Amicus addresses only the issue of whether the Plaintiff has properly pled Defamation.

Furthermore, Mr. Hoft, Mr. Stranahan, Mr. Creighton, Mr. Wilburn, Ms. Hickford and Words-N-

Ideas, LLC (the “Undersigned Defendants”) do not waive any rights of jurisdiction, notice,

process, joinder, or venue.

For the most part, the Defamation Amicus makes the same arguments—and the same

mistakes—as the Plaintiff, and this Reply will mostly rely on the arguments made in the “Brief in

Support of the Joint Motion to Dismiss and Motion for Attorney Fees and Costs of Defendants

Hoft, Creighton, Stranahan, Wilburn, Hickford and Words-N-Ideas, LLC” (Dkt. 47) (the “MTD”)

as well as the “Brief in Reply to Plaintiff’s Opposition to the Motion to Dismiss Filed by

Defendants Hoft, Stranahan, Creighton, Wilburn, Hickford and Words-N-Ideas, LLC” (the “Reply

to the Plaintiff”) (Dkt. 91) to rebut the arguments in the Defamation Amicus.

However, this Reply will rebut three arguments the Defamation Amicus makes that the

Plaintiff does not. First, this Court should reject the Defamation Amicus’ suggestion that it can or

should serve a “Ministry of Truth” function. Second, this Court should reject the Defamation

Amicus’ claim that “opinion itself is no defense.” Third, this Court should reject the Defamation

Amicus’ arguments that the Plaintiff is not a limited-purpose public figure. Otherwise, to the extent

that this brief is silent about other arguments raised by the Defamation Amicus, it is because they

are already addressed in the Reply to the Plaintiff or the MTD.

FACTS

This brief incorporates the Statement of Facts provided in the “MTD” 2-7 and the

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 additional facts noted in the “Brief in Reply in Opposition to Scholars’ Amicus Brief of Mr. Hoft,

Mr. Creighton, Mr. Wilburn, Ms. Hickford and Words-N-Ideas, LLC” (Dkt. 86) (“Reply to

Amicus”) 1-2.

I.
THIS COURT SHOULD REJECT ANY ATTEMPT BY AMICUS TO TURN THIS
COURT INTO A “MINISTRY OF TRUTH”

The first unique argument found in the Defamation Amicus to be rebutted is the suggestion

that this Court is (or should become) a “Ministry of Truth.” The Defamation Amicus attempts to

wax poetic regarding the importance of defamation law not only for its narrow purpose in

protecting reputations, but also in protecting the common people from falsehoods. Their theory is

propounded in this passage from the Defamation Amicus 3-4:

Without defamation law, public discourse “would have no necessary anchor in

truth.” David A. Anderson, Is Libel Law Worth Reforming?, 140 U. PA. L. REV.
487, 490 (1991). Defamation law thus protects the public, who must ascertain what
of the myriad of information presented to them is accurate. Defamation suits are
public and, if successful, exonerating; conduct that does not rise to the level of
actionable libel thus maintains a certain amount of credibility. Without defamation
law, the ordinary citizen would be left unsure of who and what can be trusted[.]

In short, the Amici hope that the Federal Courts can help sort out truth from lies for the benefit of

the American people. Otherwise, ordinary people might have to figure out what information is

trustworthy for themselves, a prospect that evidently frightens the Amici.

However, the idea that the courts can (or should) be general clearinghouses for truth is at

odds with what the Supreme Court has said about Freedom of Expression. As stated in U.S. v.

Alvarez, 567 U. S. 709, 718 (2012) (a.k.a. the “stolen valor case”), there is no “general exception

to the First Amendment for false statements.” Instead of allowing the courts or any other part of

the government to be general clearinghouses for determining truth or falsity, “Our constitutional

tradition stands against the idea that we need Oceania’s Ministry of Truth. See G. Orwell,

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 NINETEEN EIGHTY-FOUR (1949) (Centennial ed. 2003).” Id. at 723.1 Some categories of falsehood

can be punished, civilly and criminally, but only if the false statement also causes one of a few

narrow forms of harm. This is because our founders believed that the first and best defense against

falsity is free and open discussion rather than censorship:

The First Amendment, said Judge Learned Hand, “presupposes that right
conclusions are more likely to be gathered out of a multitude of tongues, than
through any kind of authoritative selection. To many this is, and always will be,
folly; but we have staked upon it our all.”

New York Times Co. v. Sullivan, 376 U.S. 254, 270 (1964). Or as President Kennedy put it: 2

We welcome the views of others. We seek a free flow of information across national
boundaries and oceans, across iron curtains and stone walls. We are not afraid to
entrust the American people with unpleasant facts, foreign ideas, alien
philosophies, and competitive values. For a nation that is afraid to let its people
judge the truth and falsehood in an open market is a nation that is afraid of its
people.

Put simply, by saying they wish this Court to become a free-roaming arbiter of truth, the Amici

have declared they do not believe in the wisdom of the people and that they stand in opposition to

how the First Amendment is supposed to work.

Their argument also ignores how causes of action based on falsehoods work. Defamation,

fraud, and false light are the primary torts concerned with falsehoods and each has stringent

standards for pleading and proving a case. There are a great number of falsehoods that as a matter

of law cannot be punished. For instance, a number of courts have found that certain individuals

cannot validly sue for defamation because their reputations are so poor it can no longer be harmed

1
It is worth noting that all the flowery, scholarly language supporting the notion that this Court
should serve a “Ministry of Truth” function comes from articles written well before Alvarez.
2
John F. Kennedy, Remarks on the 20th Anniversary of the Voice of America, THE AMERICAN
PRESIDENCY PROJECT, Feb. 26, 1962, http://www.presidency.ucsb.edu/ws/?pid=9075 (last visited
April 12, 2018).
3

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 and, therefore, these people are defamation-proof.3 Likewise, this Court has ruled that group

defamation cannot be prohibited without offending the First Amendment. Draego v. City of

Charlottesville, No. 3:16-CV-00057 (W.D. Va. Nov. 18, 2016). These are only two examples of

the myriad ways in which one person can make a false statement about another or even millions

of others without being subject to a valid prosecution or civil suit.

Even when a proper cause of action would lie arising from false statements in theory, one

needs a plaintiff with the means and wherewithal to pursue the case, and (typically) a competent

lawyer. Many lawyers and plaintiffs will refuse to pursue the matter unless the economics of the

situation are extremely favorable—either the risk is uniquely low or the reward is uniquely high.

Thus, very few people sue for defamation just to be “exonerated.” In that light, this Court simply

cannot be the arbiter of truth on the majority of instances where a falsehood is stated, and,

therefore, it would be absurd to attempt to assume that role.

Indeed, if the courts were recruited to ferret out every falsehood on the Internet, one would

kiss docket control goodbye. Even if the number of courts and judges were to triple in number, the

backlog would be staggering. It would be a bit like trying to bail out the Pacific Ocean with a

teaspoon—a task so staggeringly difficult it is a waste of time to attempt it. For this additional

3
See, e.g., Jackson v. Longscope, 394 Mass. 577 (1985) (serial killer and rapist who perpetrated
“the hitch-hike murders” was defamation-proof); Ray v. Time, Inc., 452 F. Supp. 618 (W.D. Tenn.
1976) (applying the defamation-proof doctrine the murderer of Rev. Martin Luther King, Jr.) and
Kimberlin v. National Bloggers Club, et al., NO. 403868V (Md. Mont. Co. Cir. Ct. 2016) (a serial
bomber known as the “Speedway Bomber” was defamation-proof). As stated in Cardillo v.
Doubleday & Co., Inc., 518 F.2d 638, 639 (2nd Cir. 1975):

we consider as a matter of law that appellant is, for purposes of this case, libel-
proof, i. e., so unlikely by virtue of his life as a habitual criminal to be able to
recover anything other than nominal damages as to warrant dismissal of the case,
involving as it does First Amendment considerations.
4

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 reason, it is not only wrong in terms of the First Amendment for the judiciary to assume a “Ministry

of Truth” function, but it is also actually impossible for the courts to do so. Accordingly, this Court

should reject the Defamation Amicus’ argument that this Court should assume a “Ministry of

Truth” function.

II.
OPINION IS A COMPLETE DEFENSE TO A CLAIM OF DEFAMATION

The second unique argument that the Defamation Amicus makes that must be rebutted is

the claim that “opinion itself is no defense,” id. at 7. As the Supreme Court said in Gertz v. Robert

Welch, Inc., 418 U.S. 323, 339-340 (1974):

We begin with the common ground. Under the First Amendment there is no such
thing as a false idea. However pernicious an opinion may seem, we depend for its
correction not on the conscience of judges and juries but on the competition of other
ideas.

While opinions can be actionable if they declare or imply untrue facts, Biospherics, Inc. v. Forbes,

Inc., 151 F.3d 180, 184 (4th Cir. 1998), outside of that exception,4 a statement of opinion is

absolutely protected speech. It is truly stunning that what the Supreme Court believed was

“common ground” is denied in the Defamation Amicus.

III.
THE PLAINTIFF IS A LIMITED-PURPOSE PUBLIC FIGURE

A point of contention between the Plaintiff and the “Undersigned Defendants” is whether

or not the Plaintiff is a limited-purpose public figure.

First, the Defamation Amicus argues that the Plaintiff does not have access to effective

channels of communication. As an initial matter, the Plaintiff does not dispute this point and,

therefore, the Plaintiff has waived this argument. Even if the Plaintiff hadn’t waived it, the facts

4
Like with the arguments of the Plaintiff, the Defamation Amicus has failed to show that this
exception applies to the instant facts.
5

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 alleged in the First Amended Complaint (Dkt. 29) belie the Defamation Amicus’ claim.

Specifically, the Tweet the Plaintiff posted containing the video of the horrific car attack was

retweeted over 80,000 times and liked more than 100,000 times. See MTD 62. Further, the Plaintiff

has spoken with multiple television news networks and other news media, including the New York

Times from August 12-14, 2017. Id.

Second, the Defamation Amicus makes an argument when claiming that “Mr. Gilmore did

not seek to influence events” that deserves to be addressed separately. The Plaintiff did not simply

report what he saw. If his only purpose in tweeting out video of the car attack, then the Tweet

would only have said something such as, “Here is footage I took of the car attack on August 12,”

perhaps with a warning to people to be careful. Instead, he used it as an opportunity to opine on

whether the attack was deliberate or not, to assert that it was terrorism, 5 and to label his side of the

protest “anti-racist”—implying that every person who supported leaving Lee’s statute in place was

necessarily a racist. In these ways, the Plaintiff was plainly trying to influence events.

Finally, the Defamation Amicus claims a ruling that the Plaintiff is a public figure will

discourage others from coming forward. First, the Plaintiff could have simply contacted the police

and turned over his evidence without putting his video out into the world. The Plaintiff might not

have done anything wrong by tweeting out video of the attack, but that does not change the fact

that his conduct is part of what rendered him a limited-purpose public figure. Furthermore, both

the U.S. Congress and the Virginia Assembly have formulated protections for witnesses to crimes, 6

and none of them include silencing protected expression. This Court should not substitute its own

5
The fact that others agree with the Plaintiff, or even that this Court might agree that the attack
was terrorism, does not change the fact that the Plaintiff was expressing an opinion that went
beyond simply reporting on events.
6
See, e.g., 18 U.S.C. § 1512 and VA. CODE § 18.2-460.
6

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 wisdom for that of those legislative bodies.

Further, to the extent that the Defamation Amicus believes it is appropriate to suppress the

speech of the Undersigned Defendants in order to encourage people who witness events to tell

their story to the media, that is contrary to the First Amendment. As stated in Buckley v. Valeo,

424 U.S. 1, 48-49 (1976), “the concept that government may restrict the speech of some elements

of our society in order to enhance the relative voice of others is wholly foreign to the First

Amendment”—a sentiment reaffirmed as recently as 2010, Citizens United v. Fed. Election

Comm’n, 558 U.S. 310, 349 (2010) (citing Buckley). Simply put, the law of defamation cannot be

interpreted to suppress speech about certain speakers because the courts like what he or she is

saying. It is truly stunning that the Defamation Amicus would argue that this Court should engage

in such blatant content and/or viewpoint discrimination. See RAV v. St. Paul, 505 U.S. 377, 384

and 391 (1992) (striking down an ordinance because it represents content and viewpoint

discrimination). See also Citizens United, 558 U.S. at 326 (“Courts... are bound by the First

Amendment”).

Apart from this, the Defamation Amicus’ arguments with respect to whether the Plaintiff

is a public figure is adequately answered in the MTD or the Reply to Plaintiff, and this brief will

fall back on those arguments.

CONCLUSION

The Defamation Amicus makes three unique points deserving rebuttal. First, it is

wrongheaded to argue that this Court can (or should) become a “Ministry of Truth”—in direct

contradiction of what the Supreme Court stated in U.S. v. Alvarez. Second, the Defamation Amicus

incredibly argues that there is no protection for the expression of opinions in defamation law.

Finally, the Defamation Amicus claims that the Plaintiff was not a limited-purpose public figure

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 by ignoring what the Plaintiff actually alleged, ignoring what he said when the spotlight was on

him and by advocating for content and/or viewpoint discrimination. For all of those reasons, as

well as the reasons stated in the MTD and the Reply to Plaintiff, the Defamation Amicus has failed

to demonstrate that the Plaintiff has stated a claim upon which relief can be granted with respect

to defamation.

Tuesday, July 10, 2018 Respectfully submitted,

s/ Aaron J. Walker
Aaron J. Walker, Esq.
Attorney for Defendants Hoft, Stranahan, Creighton,
Wilburn, Hickford and WNI
Va. Bar# 48882
7537 Remington Road
Manassas, Virginia 20109
(703) 216-0455
AaronJW72@gmail.com

CERTIFICATE OF SERVICE

I hereby certify that I electronically filed the foregoing with the Clerk of the Court for the United
States District Court for the Western District of Virginia on July 10, 2018. All participants in the
case will be served automatically.

s/ Aaron J. Walker

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